Error Preservation in Texas Civil Cases, April 13, 2021

April 13, 2021

Dear Friends:

Table of Contents

Courts rarely analyze whether a complaint was sufficiently specific-but here is one which did, and another which arguably did

Legal Sufficiency

You have to comply with the pertinent rules


Your complaint on appeal must comport with your complaint at trial

Spousal Maintenance

The Blurbs

Courts rarely analyze whether a complaint was sufficiently specific-but here is one which did, and another which arguably did.

Legal Sufficiency: “The motion to reconsider the judgement, however, includes a single sentence that reads “Plaintiff’s alternatively ask this Court to treat this Motion as a Motion for New Trial and/or to Modify, Correct, or Reform a Judgment pursuant to Rule 329(b).” (Emphasis added). Then, the motion argues that it is timely under Rule 329(b). The motion does not refer to rule 324, the rule governing motions for new trial See Tex. R. Civ. P. 324), but it urges that the evidence adduced at trial does not support the amount awarded to Parklane. Pawn claims there is contradictory evidence concerning the amount of rent Pawn owed and incorporates the motion for remittitur by reference. The prayer requests that the court modify the judgment and “lower the excessive damages,” but does not seek a new trial.

Even if we considered the above sufficient to constitute a motion for new [*9] trial, it does not seek a new trial on the points raised on appeal. . . . The motion does not reference or refer to materiality or argue that the evidence is legally insufficient to support a deemed finding. Similarly, the motion is not sufficiently specific to make the trial court aware of a factual sufficiency complaint. . . . n. 5 n. 5 The motion is also not sufficiently specific to preserve Pawn’s challenges to the factual sufficiency of the evidence to support the damage and attorney’s fees awards.” Hollingsworth v. Parklane Corp., No. 05-19-01576-CV, 2021 Tex. App. LEXIS 2661, at *8-9, n. 5 (Tex. App.—Dallas Apr. 7, 2021)

Summary Judgment: “The City insists that we must reverse the ruling because: (1) appellees failed to respond to the City’s official immunity argument in their summary judgment response; (2) appellees’ evidence was not made part of the record; and (3) at this point in the jurisdictional analysis, a court may only consider the City’s evidence, not any controverting evidence. We address each argument.

First, according to the City, appellees waived any challenge to official immunity because in their summary judgment response, they disputed the City’s reliance on the emergency response exception but did not address the good-faith element of official immunity through argument and evidence.

We disagree. Although appellees focused the bulk of their responsive arguments on the applicability of the TTCA’s emergency response exception, they also asserted “that the negligence of the HFD operator would be actionable if this case were not one implicating governmental immunity.” Thus, appellees [*20] took the stance in the trial court that Schmidt did not retain his official immunity. In the fact section of their response, appellees identified and referenced attached evidence demonstrating the fact issues they contended existed as to whether Schmidt: “(i) exercised due care for the safety of others, (ii.) ran the red light at Ludington Drive after slowing as necessary for safe operation and (iii.) endangered life and property by exceeding the speed limit as it ran the red light.” These asserted fact disputes pertain directly to the issue of good faith raised by the City’s motion. We conclude that appellees fairly and sufficiently challenged Schmidt’s official immunity in the trial court and did not waive their corresponding appellate arguments. See Tex. R. App. P. 33.1(a).” City of Hous. v. Manning, No. 14-20-00051-CV, 2021 Tex. App. LEXIS 2590, at *19-20 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021)

You have to comply with the pertinent rules.

Findings: “We first address whether Paul waived his complaint about fact findings and then address whether Paul preserved his modification arguments.

Under Rule of Civil Procedure 298, after the trial court files original findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions. Tex. R. Civ. P. 298. Failure by a party to request additional amended findings or conclusions waives the party’s right to complain on appeal about the lack of a finding. . . . In its findings of fact and conclusions of law, the trial court made a finding that at the time of the trial, Rena “lacked property to provide for her minimum reasonable [*6] needs,” see Tex. Fam. Code Ann. §§ 8.052(1), 8.057(c), and that as a result of Paul’s non-payment of spousal maintenance to Rena since June 2016, Rena had to sell her home. It also found that Paul had had the ability to pay spousal maintenance from 2016 to the date of trial in 2019, see id. § 8.052(5), and concluded that Paul had had the ability to pay it in the amount of $1,150 per month. The trial court did not make a finding that a material and substantial change in circumstances had occurred. Cf. id. § 8.057(c). Paul argues that the trial court should have made such a finding based on the evidence presented at trial, which, he contends, established that he cannot pay the ordered spousal maintenance from his current income. Because he failed to request a finding on this issue, he has thereby waived this portion of his first issue.” Prevallet v. Prevallet, No. 02-19-00383-CV, 2021 Tex. App. LEXIS 2730, at *5-6 (Tex. App.—Fort Worth Apr. 8, 2021)

Your complaint on appeal must comport with your complaint at trial.

Spousal Maintenance: “Under the circumstances presented by the record in this case, Paul failed to raise modification in his pleadings and sought only to terminate his future spousal maintenance obligation. The [*13] evidence at trial showed that he and Rena were both alive and did not show that Rena had remarried or entered into romantic cohabitation, the statutory bases for terminating an obligation to pay future spousal maintenance. See Tex. Fam. Code Ann. § 8.056(a)-(b). Paul’s “modification” theory was only that he lacked income to pay $1,150; he did not testify or otherwise show that he could have paid less than $1,150 but more than zero, which might have supported modification. n. 6 Accordingly Paul has failed to preserve his modification arguments for our review, and we overrule this portion of his sole issue. n. 6 Absent any testimony that Paul could pay something less than $1,150 per month, modification was not tried by consent.” Prevallet v. Prevallet, No. 02-19-00383-CV, 2021 Tex. App. LEXIS 2730, at *12-13 (Tex. App.—Fort Worth Apr. 8, 2021)

All for now.  Y’all stay safe and well.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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